[1] James vi. Parl. 6, Act 69.—‘Though regularly crimes die with the committers, and cannot be punished after their death, yet by this Act it is ordained that Treason may be pursued after the committer’s death.’—Sir George Mackenzie’s Observations on the Statutes, p. 136.
Sir George Mackenzie, then Lord Advocate, prosecuted. The charge was that Monmouth, Dalrymple, and Fletcher had, in the year 1683, entered into a plot with Shaftesbury, Argyll, Russell, and others, to kill the King; in short, they were accused, in the first place, of complicity in the Whig Plot and the Rye-House Plot. But the most serious charge against Fletcher was that he had come from Holland with Monmouth. The indictment against him set forth that he ‘landed with him (Monmouth) and rode up and down the country with him, and was in great esteem with him at Lyme for two or three days, and continued in open rebellion with him, till, having killed one Dare, an English goldsmith, who was likewise with them in the said rebellion, he was forced to fly in the frigotts in which they came, and make his escape.’
When the case against Fletcher came on, it was found that of forty-five jurymen who had been summoned only thirteen were in attendance; and the proceedings were adjourned until the 4th of January. On that day the charge of complicity in the Whig and Rye-House Plots was withdrawn, and he was accused only of taking part in Monmouth’s invasion.
Fletcher was called, as a matter of form, and, when he did not appear, was declared a fugitive from the law. Then the Lord Advocate asked that his estate should be forfeited. A jury was chosen, amongst the members of which were the Marquis of Douglas, the Earl of Mar, the Earl of Lauderdale, and other peers, and of commoners Sir John Clerk of Pennycuik and Sir John Dalmahoy of that Ilk. Two witnesses, Captain Bruce and Anthony Buyse, were examined. Buyse could only say that he had himself sailed in the ship with Monmouth, ‘where he did see a gentleman who was called “Fletcher of Saltoun,” who was a little man, and had a brown periwig, of a lean face, pock-marked,’ and that he heard he was ‘a Scots gentleman of a good estate.’ After the death of Dare he saw this gentleman ‘flee to the ship.’ Captain Bruce knew Fletcher, and had sailed with him to Lyme.
The judges, however, were very punctilious about complete identification, and the evidence was not considered sufficient until the deposition of Monmouth’s servant Williams, then a prisoner in Newgate, was read. He stated that a few days before Monmouth embarked for England he ‘saw the said Mr. Fletcher with the late Duke, at his lodging in Mr. Dare’s house in Amsterdam,’ and then described Fletcher’s doings from the day they left Amsterdam until the afternoon of the 13th of June 1685.
The proceedings of the jury, when they retired to consider their verdict, show that the judges were right in requiring full legal evidence as to the identity of Fletcher; for Lord Torphichen, Sir John Clerk, Somerville of Drum, and at least one more of the jury, argued that the evidence was insufficient, on the ground that only one witness, Captain Bruce, had been examined who could identify Fletcher of his own personal knowledge. Buyse, they said, who had spoken only from hearsay, ‘might be mistaken.’ But when they returned to the court-room, Lord Lauderdale, the foreman, announced that by a majority they found a verdict of Guilty.
Then Fletcher was sentenced to be put to death wherever he was found. He was attainted as a traitor. His name and memory were declared extinct, his blood tainted, his descendants incapable of holding any places or honours, and all his estates forfeited to the Crown.
This sentence was pronounced on the 4th of January 1686; and, by a grant under the Great Seal, dated Whitehall, 16th January, the lands and barony of Saltoun were given to George, Earl of Dumbarton.